The Legality of Presidential Signing Statements

By Sarah Nelson

In 2006 the American Bar Association convened a task force to investigate the legality of the presidential signing statement.[i] A signing statement is defined as a “written comment issued by a President at the time of signing legislation” and is most often utilized by a President to offer a comment of approval or disapproval on legislation being passed.[ii]. When adhering to its original purpose, a signing statement is relatively harmless, and is the equivalent of a President issuing a press release stating his position. But then why did the American Bar Association task force determine that signing statements directly “undermines the rule of law” and compromise “our constitutional system of separation of powers”?[iii]

From 1993 to 1996, Assistant Attorney General Walter Dellinger conducted a research study on the history of signing statements.[iv] Dellinger determined that three distinct types of signing statements existed: constitutional, political and rhetorical. A constitutional signing statement is one that claims a particular law does not act in accordance with the Constitution and therefore executive agencies will not take part in enforcing the law as it is written.[v] A political signing statement is used by the President to clarify vague language in a law.[vi] Finally, Dellinger defines a rhetorical signing statement as a method for President’s to “mobilize political constituencies” in opposition or in favor of a law.[vii] But paradoxically, the constitution type of signing statement is argued to be unconstitutional.

Presidents have used presidential signing statements since the administration of James Monroe in 1817.[viii] However, they were generally not reported on until the 1980’s when they began to be used with greater frequency. The New York Times elaborates on the uptake in frequency noting that before the presidency of Ronald Reagan there had only been 75 signing statements.[ix] Between Reagan, George H.W. Bush and Clinton alone there were used 247 times.[x] During the presidency of George W. Bush he signed 157 signing statements that “challenged over 1,100 provisions of federal law”.[xi]This sharp increase has been less drastic during the Obama presidency with only 28 signing statements being issued as of June 17, 2014.[xii] The legality of signing statements has been thrust into the spotlight due to the unprecedented rate at which they are being used.

Controversy over signing statements reached a fever pitch during the presidency of George W. Bush, with critics claiming that he used them as a form of line-item veto. Line item vetoes have been unconstitutional since the Supreme Court outlawed them in the case of Clinton v. City of New York in 1998.[xiii] One of the most controversial signing statements from the Bush administration occurred in 2005 with the passage of the Detainee Treatment Act. This constitutional signing statement announced that the Bush administration would “construe the act relating to detainees in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch…”[xiv] In essence this voided the legislation passed by Congress in favor of saying that the executive branch would act as it saw fit in the treatment of detainees. Opponents of signing statements saw this as a considerable breach of the separation of powers.

            The legal significance of signing statements is best described as murky and unclear. The United States Constitution provides no provision that “explicitly permits or prohibits” this presidential practice.[xv] Therefore signing statements have never been granted a constitutionally based legal standing. The Presentment Clause of the Constitution located in Article I Section 7 states that “every order, resolution, or vote to which the concurrence of the Senate and the House of Representatives may be necessary (except on a question of adjournment) shall be presented to the President of the United States; and before the same shall take effect, shall be approved by him, or being disapproved by him…”[xvi] The Constitution allows the President to either sign or veto legislation in its entirety, but mentions nothing about the President being allowed to selectively choose which parts of legislation he will or will not enforce. Opponents of signing statements argue that presidents that employ them are in violation of Article II Section 3 of the Constitution. Article II Section 3 asserts that the executive offices of the President must “take care that the laws be faithfully executed”.[xvii] When a President issues a signing statement specifically saying that he will not “faithfully execute” a portion of a law he is directly disobeying the Constitution.

The Supreme Court has remained ambiguous on the legality of presidential signing statements. Opponents of signing statements argue that they should be outlawed because they undermine the Supreme Court’s judicial review established in Marbury v. Madison.[xviii] Members of the United States Congress also dispute the legality, particularly former Pennsylvania Senator Arlen Specter. In 2006 Specter repeatedly advocated for legislation that would limit the usage of the signing statement. The bill Specter proposed, called the Presidential Signing Act of 2006, would force state and federal courts to disregard all presidential signing statements.[xix] The legislation would have also required the Supreme Court to allow the U.S. Senate and the U.S. House of Representatives to individually decide the constitutionally of all signing statements.[xx] The Presidential Signing Statements Act of 2006 expired within committee, but copies of the legislation have been systematically reintroduced to Congress.

Controversy also exists on how the number of signing statements issued by a President should be calculated. One way to determine the number of signing statements is to do a “flat count”, which means counting every political, rhetorical and constitutional signing statement. Another way to complete the calculation is to only count the number of statutes a particular signing statement challenges within a law. In research compiled by the Congressional Research Service in 2007 President Clinton was determined to have issued the highest number of signing statements.[xxi] However, in a New York Times study conducted in 2009 President George W. Bush was considered to have “broken all records” in his number of signing statements.[xxii] The results vary depending on how the data is interpreted.

The American Bar Association assembled a task force titled the “Task Force on Presidential Signing Statements and the Separation of Powers Doctrine”. This task force issued a report in 2006 that condemned the use of signing statements claiming that they violated the basic separation of powers.[xxiii] The task force proposed a number of recommendations including the use of the presidential veto in place of a signing statement, communication with Congress when the President deems legislation unconstitutional and the enactment of legislation that makes all signing statements available to the American public.[xxiv] As of right now these suggestions have never been implemented.

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"Bush's Tactic of Refusing Laws Is Probed." Washington Post. The Washington Post, 24 July 2006. Web. 19 Nov. 2014.

"Obama Circumvents Laws with 'Signing Statements,' a Tool He Promised to Use Lightly." Washington Post. The Washington Post, n.d. Web. 19 Nov. 2014.

Garvey, Todd. "Presidential Signing Statements: Constitutional and Institutional Implications." Congressional Research Service (2012): 7-14. Congressional Research Service, 4 Jan. 2012. Web. 18 Nov. 2014.

"Presidential Signing Statements." Library of Congress Home. N.p., n.d. Web. 18 Nov. 2014.

"Presidential Signing Statements." Presidential Signing Statements Research Guide. Georgetown Law, n.d. Web. 19 Nov. 2014.

"Presidential Signing Statements." Presidential Signing Statements. The American Presidency, n.d. Web. 19 Nov. 2014.

U.S. Constitution. Article I, Sec, 7.

“Why the Obama Administration Has Issued Fewer Signing Statements.” The Miller Center. The University of Virginia, n.d. Web. 19 Nov. 2014.

[i] "Presidential Signing Statements." Library of Congress Home. N.p., n.d. Web. 18 Nov. 2014.

[ii] "Presidential Signing Statements." Library of Congress Home.

[iii] "Presidential Signing Statements." The American Presidency.

[iv] "Presidential Signing Statements." Presidential Signing Statements Research Guide. Georgetown Law, n.d. Web. 19 Nov. 2014.

[v] "Presidential Signing Statements." Presidential Signing Statements Research Guide.

[vi] "Presidential Signing Statements." Presidential Signing Statements Research Guide.

[vii] "Presidential Signing Statements." Presidential Signing Statements Research Guide.

[viii] "Presidential Signing Statements." Library of Congress Home.

[ix] "Obama Circumvents Laws with 'signing Statements,' a Tool He Promised to Use Lightly." Washington Post. The Washington Post, n.d. Web. 19 Nov. 2014.

 [x] Obama Circumvents Laws with 'signing Statements,' a Tool He Promised to Use Lightly." Washington Post.

[xi] Obama Circumvents Laws with 'signing Statements,' a Tool He Promised to Use Lightly." Washington Post.

[xii] Obama Circumvents Laws with 'signing Statements,' a Tool He Promised to Use Lightly." Washington Post.

[xiii] "Bush's Tactic of Refusing Laws Is Probed." Washington Post. The Washington Post, 24 July 2006. Web. 19 Nov. 2014.

[xiv] "Bush's Tactic of Refusing Laws Is Probed." Washington Post.

[xv] "Presidential Signing Statements." Library of Congress Home.

[xvi] “The Constitution of the United States,” Article I.

[xvii] “The Constitution of the United States,” Article I.

[xviii] "Presidential Signing Statements." Library of Congress Home.

[xix] "Presidential Signing Statements." Presidential Signing Statements Research Guide.

[xx] "Presidential Signing Statements." Presidential Signing Statements Research Guide.

[xxi] Garvey, Todd. "Presidential Signing Statements: Constitutional and Institutional Implications." Congressional Research Service (2012): 7-14. Congressional Research Service, 4 Jan. 2012. Web. 18 Nov. 2014.

[xxii] Garvey, Todd. "Presidential Signing Statements: Constitutional and Institutional Implications."

[xxiii] Garvey, Todd. "Presidential Signing Statements: Constitutional and Institutional Implications."

[xxiv] Garvey, Todd. "Presidential Signing Statements: Constitutional and Institutional Implications."

The Responsibility to Protect: Does its Legal Strength Affect the Inconsistency of its Application?

   By William Reed             

                The Responsibility to Protect is a doctrine born out of the International Commission on Intervention and State Sovereignty of 2000 which was held in response to the lack of coherent guidelines for humanitarian intervention.  From Rwanda to Bosnia to Somalia to Kosovo, situations where humanitarian intervention could have potentially remedied the situation were handled poorly or no action was taken at all.  The Responsibility to Protect came as an attempt to shift the global dialogue from the rights of states to intervene in the affairs of another state, to the responsibility states have to protect their citizens and how the international community should react if that responsibility is not met.[1]

                  The Responsibility to Protect doctrine (RtoP) frames sovereignty as a responsibility, not a right of states.  The government's responsibilities include protecting its citizens from harm.  RtoP says that if a government fails to provide protection or commits any sort of atrocity, from genocide to crimes against humanity within its own population, the international community not only has the right to intervene, but it has the responsibility to intervene.[2]  Sovereignty no longer means that governments can operate in whatever manner they want toward their own citizens.  In essence, the focus is shifted back toward the original goal of humanitarian intervention: civilian protection.

Already the tension between sovereignty and RtoP is apparent.  Sovereignty is one of the major pillars of the international order and RtoP argues that, under certain circumstances, other states can violate one state's sovereignty.   The principle of sovereignty as written in the UN Charter says that “all Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state.”[3]  Sovereignty is a staple of international law, and can only be violated if action is authorized by the UN Security Council or in self-defence, as stated in Article VII.[4]  The UN's conception of sovereignty and legitimate uses of force are the two most important legal concepts used to analyse RtoP. 

The Responsibility to Protect, however, is not legally binding.  The Responsibility to Protect can still only be seen as an international norm.  Scholars argue that RtoP is grounded in existing international law and is meant to be a guideline for how the relevant pieces of international law should be interpreted.  While RtoP drastically alters the norms governing states legal obligations in the face of atrocity, it does not create any new international law.

In the international system, norms have the opportunity to become laws through codification in legally binding treaties or extensive adherence to a norm by states.  Many argue that solidifying the legal obligations of RtoP in an international treaty would make RtoP more effective.  A treaty could impose more concrete guidelines such as a definite trigger and prescription of acceptable actions. Most likely the main reason a legal definition has not emerged is political: governments fear they will be obligated to intervene against a state they favour or that a government's own state will be targeted for intervention. 

Comparing and contrasting the cases of Muammar Ghadaffi's regime in Libya with the case of Bashar Al-Assad's regime in Syria offers an example of where RtoP, a doctrine designed to eliminate inconsistencies in the international response to atrocities, has proven too weak.  The UN Security Council authorized intervention in Libya through resolutions 1970 and 1973 in 2011.[5]  Libya is an example where the legal aspects and political climate aligned to allow for the implementation of RtoP.  In the face of ideological divides of the UN Security Council (particularly Russia and China's anti-interventionist attitudes) and the requirement of unanimity, political considerations can easily undermine what is moral when considering authorizing the use of force.  No permanent member used its veto in Syria and the states with the capability to take action were willing to because the situation in Libya was relatively straight forward. 

While Libya was not particularly divisive politically, Syria has been a starkly different story.  China and Russia have threatened to veto all resolutions authorizing intervention in Syria.[6]  Beyond the unwillingness of China and Russia to authorize action, other major powers with the capability to intervene found the situation on the ground complicated.  There was no strong, unified force for the international community to support and intelligence was difficult to obtain.  The analysis by some is that Syria looks strikingly similar to the Rwandan Genocide in 1994; the exact event RtoP was designed to prevent from recurring.

What emerges from this is a question of whether immediately codifying the Responsibility to Protect as an international law actually solve the inconsistencies of implementation. As stated before, some of the benefits would be establishing a trigger for intervention and increasing the punishment for states that do not act.  Most importantly, the current formulation of RtoP has clearly not solved the problems of intervention in the 1990’s, thus there is risk of the same problems recurring if the international community waits and hopes that the issues resolve naturally without any changes to RtoP.  Critics, on the other hand, argue that because RtoP only reaffirms existing laws and creates nothing substantially new, codifying it as a brand new law would actually give it less force and legitimacy than if it continues to rely on its grounding in established international law.[7] 

                  While it is true that the Responsibility to Protect is a strong political call to states, situations continue to arise where states fail to follow the RtoP doctrine. The only repercussions resulting from states' inaction unfortunately fall on the unprotected populations.  Thus far, RtoP has been a somewhat-successful experiment at remedying the problems with humanitarian intervention in the 1990’s.  However, there is a long way to go and the debate over the best way to increase compliance with the doctrine must continue.  It seems as though occurrences of mass atrocities will not cease and, in response, the international community's moral obligation to halt atrocities must be realized and executed more completely and effectively.

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[1] Evans, Gareth, and Mhamed Sahnoun. "The Responsibility to Protect." Foreign Affairs. N.p., Dec. 002. Web. Nov. 2014.

[2] Weiss, Thomas. “Military Humanitarianism: Syria Hasn’t Killed It.” The Washington Quarterly, 37:1, 7-20. 12 March 2014. Web.

[3] United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI

[4] Id.

[5] Pommier, Bruno. "The use of force to protect civilians and humanitarian action: the case of Libya and beyond." International Review of the Red Cross 93.884 (2011): 1063-1083.

[6] Weiss, Thomas. “Military Humanitarianism: Syria Hasn’t Killed It.” The Washington Quarterly, 37:1, 7-20. 12 March 2014. pg 13. Web

[7] Burke-White, William W. "Adoption of the Responsibility to Protect." (2011).  Web